Opinion
No. KA 06-03785.
April 25, 2008.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered December 1, 2006. The judgment convicted defendant, upon a nonjury verdict, of assault in the second degree, assault in the third degree and misdemeanor driving while intoxicated (two counts).
ROBERT TUCKER, CANANDAIGUA, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS OF COUNSEL), FOR RESPONDENT.
Present: Smith, J.P., Lunn, Fahey, Pine and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a bench trial of, inter alia, assault in the second degree (Penal Law § 120.05), defendant contends that the verdict is against the weight of the evidence with respect to his intent to cause serious physical injury. We reject that contention ( see generally People v Bleakley, 69 NY2d 490, 495). "A defendant may be presumed to intend the natural and probable consequences of his actions . . ., and [i]ntent may be inferred from the totality of conduct of the accused" ( People v Mahoney, 6 AD3d 1104, 1104, lv denied 3 NY3d 660 [internal quotation marks omitted]). Here, defendant conceded that he caused serious physical injury to the victim but denied that he intended to do so, relying on the fact that he had been drinking alcohol before the incident. Eyewitnesses testified, however, that defendant knocked the victim to the floor of a porch and repeatedly kicked him in the face while wearing hiking boots. Thus, it cannot be said that County Court failed to give the evidence the weight it should be accorded ( see id. at 1104-1105; People v Mike, 283 AD2d 989, lv denied 96 NY2d 904; see generally Bleakley, 69 NY2d at 495).